The battle over secondhand smoke hits home

A lawsuit brought by condo owners against their neighbors, the homeowners association and others over secondhand smoke has become part of a growing movement to limit where people can light up. The latest frontier: Multi-unit homes.

Health hazards of secondhand smoke

Secondhand smoke causes nearly 50,000 deaths a year, according to the American Lung Association.

Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke. Secondhand smoke contains hundreds of chemicals known to be toxic or carcinogenic, including formaldehyde, benzene, vinyl chloride, arsenic ammonia and hydrogen cyanide.

A 2009 report by the Institute of Medicine confirmed that secondhand smoke is a cause of heart attacks, and concluded that even relatively brief exposure could trigger a heart attack.

Secondhand smoke causes approximately 3,400 deaths from lung cancer and 22,700 to 69,600 deaths from heart disease each year.

Research into previously secret tobacco industry documents reveals that research conducted by cigarette company Philip Morris in the 1980s showed that secondhand smoke was highly toxic, yet the company suppressed these findings during the next two decades.

– American Lung Association

The battle over secondhand smoke is intensifying in California, as the focus shifts from public spaces to the most private of places: Lighting up at home.

An Orange County Superior Court jury this month found a Trabuco Canyon homeowners association and management company negligent for failing to resolve a secondhand smoke dispute between neighbors at a condominium.

The case likely will have ramifications for condo associations statewide as they deal with disagreements over where people cansmoke, said Michael Sohigian, a Westwood lawyer who once lost a similar case against an apartment owner.

"This lawsuit will certainly influence homeowners associations throughout the state in responding to complaints from (condo) owners," Sohigian said of the Orange County verdict. "It's going to have a real impact."

The award itself was modest, but the homeowners association also could be on the hook for a significant part of the prevailing lawyer's tab. The legal fees in the five-week trial still are being tallied.

The case has become part of a growing movement to further limit smoking.

A state Assemblyman recently filed a bill that would prohibit Californians from smoking inside their own apartments, condos and duplex units. About a third of the state's 38 million residents live in multi-unit homes.

A variety of laws around California, and some other states, address secondhand smoke in multi-use residences. But no other place has passed a statewide ban.

"This is going to be a heavy lift," said Assemblyman Marc Levine, D-San Rafael, who authored the legislation, in an interview last week. "We're asking people to change behavior that unfortunately has been accepted for far too long. And anytime we ask people to change behavior, it's difficult."

A 'constant infiltration'

On March 6, Orange County Superior Court jurors awarded a family more than $15,000, finding the condo association and management failed to ensure the nonsmoking family's right to the "quiet enjoyment" of their own unit.

Kim and Kai Chauncey filed their lawsuit in March 2011 against the Bella Palermo Homeowners Association in Trabuco Canyon and TSG Independent Management. The defendants included tenants of the condo next door and the unit's owner.

The Chaunceys alleged that the neighbors and their visitors smoked "incessantly" on their patio and adjoining sidewalks in front of their home, with the "constant infiltration and presence of secondhand smoke" entering their condo through windows and a sliding-glass door. The Chaunceys said the smoke aggravated their young son's asthma. They said that despite their repeated complaints, the homeowners association, the management company, the tenants and the condo owner did not stop the problem.

The jury found that the homeowners association and management company were liable for breach of contract and negligence. The homeowners association's rules did not address secondhand smoke, said the Chaunceys' lawyer, Scott Bonesteel, but "we basically said what you're doing, though it is not specifically called out in the CC&Rs, is in fact a breach" of the association's anti-nuisance rules.

The $15,500 award was far less than the $120,000 that Bonesteel requested. The attorney for the homeowners association, Cyril Czajkowskyj, interpreted the amount as showing "the jury did not accept the severity of the damages."

A lawsuit brought by condo owners against their neighbors, the homeowners association and others over secondhand smoke has become part of a growing movement to limit where people can light up. The latest frontier: Multi-unit homes.
The entrance to the Bella Palermo condominiums in Trabuco Canyon, the site of a dispute over secondhand smoke that led to a lawsuit. The family who filed the suit against their neighbors, the homeowners association and others won their case this month. MARILYN KALFUS, ORANGE COUNTY REGISTER
A sign at the entrance to the Bella Palermo condominiums in Trabuco Canyon, the site of a legal dispute over secondhand smoke. The condo owners who filed the lawsuit prevailed. MARILYN KALFUS, ORANGE COUNTY REGISTER

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